RITA ALTOMARA v. FORT LEE LIBRARY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RITA ALTOMARA,

Plaintiff-Appellant,

v.

FORT LEE LIBRARY BOARD,

JOSEPH L. CERVIERI, JR.,

PAIGE SOLTANO and MATA NIKIAS,

Defendants-Respondents.

________________________________

July 2, 2014

Submitted March 4, 2014 Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3176-11.

Joseph H. Cerame, attorney for appellant.

Botta & Associates, L.L.C., attorneys for respondent (Christopher C. Botta and Natalia R. Angeli, of counsel and on the brief).

PER CURIAM

Plaintiff Rita Altomara appeals from a December 21, 2012, order dismissing on summary judgment her complaint alleging age-based, and disability-based discrimination, and a hostile work environment. The motion judge found that plaintiff failed to produce proof that the employer's reasons were pretextual. On an appeal from an order granting summary judgment, we exercise de novo review, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We determine whether there exists a genuine issue of material fact, and if not, whether the motion judge correctly applied the law. Ibid. Having done so, we affirm.

I.

Plaintiff has been the library director of the Fort Lee Public Library (Library) since 1984. She claims defendant Library Board of Trustees (Board), and three Board members, defendants Joseph L. Cervieri, Jr., Paige Soltano, and Mata Nikias, denied her a raise because of her age she was almost sixty-one when she filed her complaint on April 7, 2011 and because of her disability she has multiple sclerosis (MS). She acknowledges, in light of the two-year limitations period for claims under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, she may only seek relief from adverse employment actions since April 8, 2009. See Montells v. Haynes, 133 N.J. 282, 286 (1993).

Shortly after the close of discovery ending October 8, 2012, defendants moved for summary judgment. Plaintiff did not file a responsive statement of material facts, or any other competent evidence, such as a proper certification or affidavit. See R. 1:6-6; R. 4:46-2(b). Instead, through her attorney's certification, plaintiff restated her allegations and incorporated by reference portions of defendants' statement of material facts. Therefore, under the circumstances, we accept as true the facts presented in defendants' statement of material facts. R. 4:46-2(b).1

Plaintiff has not received a raise since 2005. In 2007, an outside consultant, hired by the Board, concluded that numerous Library employees were underpaid, and held titles below their responsibilities. He recommended that numerous job titles be reclassified and salaries increased, to conform with standards of the New Jersey Library Association (NJLA). The consultant took no position on the director's salary, stating the decision properly rested with the Board.

As Board personnel changed, including Board presidents, a consensus apparently developed that plaintiff did not merit a raise. Plaintiff alleged that in 2005, president Joan Kafes, a former library employee, harbored animosity toward plaintiff. Plaintiff claimed that Kafes retaliated against her because plaintiff had reprimanded Kafes and denied her a raise when she worked for the Library.

Plaintiff alleged that defendant Soltano, a subsequent Board president, and defendant Cervieri, implied or directly stated that she was not doing her job. But, they gave plaintiff no details, nor did they conduct a formal evaluation of her performance. Plaintiff alleged that she asked for a raise at multiple Board meetings of unspecified dates and was rebuffed. She also complained that Soltano micromanaged the Library, and overstepped her role as president. Plaintiff asserted that Soltano and Cervieri spoke to her in an unwelcome tone.

Plaintiff contended that she was denied raises to encourage her to retire. She claimed that she told Cervieri and Soltano during one meeting that she could raise her pension by getting paid more, or by working more, and "it looks like the only way I'm going to do it is by working more years. And Joe [Cervieri] said, 'Well, I guess you're going to be here a long time.'" Plaintiff alleged Cervieri once told her that she could receive an increase if she decided to retire. She also asserted that the Board wanted her to retire because she did not live in Fort Lee or support the Democratic party.

However, plaintiff failed to provide an analysis of her own performance, or accomplishments that merited a raise. She cited only the creation of a "Books on Wheels" program twenty years ago; book discussion groups fifteen years ago; and the replacement of a piano. She cited no programs created within the last twelve years. She generally claimed her success could be measured by library circulation, attendance, registration, positive comments, and gifts to the library, but she provided few details.

The record does not disclose plaintiff's salary. Although plaintiff alleged her salary was low compared to other librarians in Bergen County, she provided no details of those other librarians' salaries, experience, or responsibilities. She conceded that the Board also denied raises to the Library's assistant director and administrative director.2

Plaintiff also alleged that the Board wanted her to retire because of her disability. She pointed to her difficulty walking. However, she conceded she could not substantiate her claim with any statements addressing her disability, or other circumstantial evidence of disability-based animus besides the denial of raises. She conceded that her hours were relaxed to accommodate her disability in 2003 or 2004, and the Board otherwise accommodated her disability-related needs. She also acknowledged that the nature of her disability was not common knowledge, although she revealed it to the Board.

The trial court granted defendants' motion for summary judgment. Apparently finding that she had established a prima facie case, the court held that plaintiff had failed to present sufficient evidence that defendants' explanation for its salary decisions that plaintiff's performance did not merit a raise was pretextual. The court also denied, without explanation, plaintiff's cross-motion to extend discovery.

Plaintiff appeals from the grant of summary judgment. She also argues that the discovery order should be reconsidered if summary judgment is reversed.

II.

Plaintiff seeks to establish a prima facie case of discrimination through circumstantial evidence. See Bergen Commercial Bank v. Sisler, 157 N.J. 188, 208 (1999) (stating that a prima facie case may be established by direct or circumstantial evidence). In recognition of the difficulty of proving discrimination through direct evidence, our Court has adopted the so-called McDonnell Douglas test, whereby a plaintiff may establish, through circumstantial evidence, a prima facie case of discrimination, or a "presumption of discrimination." Id. at 209-10 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)).

Under the McDonnell Douglas test, a plaintiff must satisfy four prongs that our courts have modified to suit particular forms of discrimination in particular settings. Victor v. State, 203 N.J. 383, 408-10 (2010); Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 83 (1978). For example, in a discriminatory discharge case, the "plaintiff must demonstrate: (1) that plaintiff is in a protected class; (2) that plaintiff was otherwise qualified and performing the essential functions of the job; (3) that plaintiff was terminated; and (4) that the employer thereafter sought similarly qualified individuals for that job." Victor, supra, 203 N.J. at 409.

If the plaintiff satisfies the initial test, creating a presumption of discrimination, then "[t]he defendant . . . bears the burden of rebutting that presumption by articulating a legitimate and non-discriminatory reason for the termination." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 458 (2005); Bergen Commercial Bank, supra, 157 N.J. at 210. However, the burden of persuasion remains with the plaintiff. Once the defendant rebuts the presumption of discrimination, the plaintiff must "not simply show that the employer's reason was false" or pretextual, "but must also demonstrate that the employer was motivated by discriminatory intent." Zive, supra, 182 N.J. at 449.

In the summary judgment context, a plaintiff must, through direct or circumstantial evidence, either discredit the proffered reasons for the adverse employment action, or present evidence that "'discrimination was more likely than not a motivating or determinative cause'" of the action. DeWees v. RCN Corp., 380 N.J. Super. 511, 528 (App. Div. 2005) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). To discredit the proffered reason, a "plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence.'" Ibid. (emphasis omitted) (quoting Fuentes, supra, 32 F. 3d at 765). See also El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 173-74 (App. Div. 2005).

At the outset, the four-part test must be modified here to accommodate a claim by an entity's highest ranking employee that she was wrongfully denied a raise. "[H]igher level employees do not fit neatly into the McDonnell[]Douglas analysis." Peper, supra, 77 N.J. at 84. We have found no New Jersey case expressly modifying the McDonnell Douglas test for a prima facie case involving the denial of a raise to a top-ranked employee. Some guidance may be found in cases involving claims of denied promotions, or unequal pay. In a case involving a denial of a promotion because of alleged sex-based discrimination, the plaintiff was required, as part of her prima facie case, to establish that "similarly situated males were promoted while she was not." Peper, supra, 77 N.J. at 84. In other words, the plaintiff was required to compare herself to "persons possessing equivalent qualifications and working in the same job category." Id. at 84-85.

Applying both the Equal Pay Act, 29 U.S.C.A. 206(d), and the LAD, the Court has identified two tests when a plaintiff alleges unequal pay because of sex-based discrimination. If a female plaintiff can establish she received unequal pay for work "substantially equal to that performed by male employees," then the burden of proof shifts to the employee to establish an affirmative defense. Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 110 (1990). If a female plaintiff can establish unequal pay for similar work, then the burden of production shifts to the employer, while the burden of persuasion remains with the plaintiff, as under the McDonnell Douglas test. Id. at 110. See also Johnson v. Univ. of Wis.-Eau Claire, 70 F.3d 469, 478 (7th Cir. 1995) (stating that a prima facie case in the "wage discrimination context" requires a female plaintiff "to produce evidence that she was paid less than a similarly-situated male or males"); McIntyre v. Longwood Cent. School Dist., 658 F. Supp. 2d 400, 415 (E.D.N.Y. 2009) (stating that, to establish a prima facie claim of wage discrimination based on denied pay raises, a plaintiff must show "(1) she belongs to a protected class; (2) she received low wages; (3) similarly situated comparators outside the protected class received higher compensation; and (4) she was qualified to receive the higher wage") (internal quotation marks and citation omitted), aff'd, 380 F. App'x 44 (2d Cir. 2010).

Unlike in Peper or Grigoletti, there are no employees within the Library who are similarly situated with plaintiff. Therefore, it is appropriate to require her to establish that she was denied a level of pay commensurate with library directors holding positions similar to hers. Alternatively, plaintiff could establish that she was denied raises commensurate with the Library's other senior managers who are not members of the protected groups to which plaintiff belongs.3

Applying these principles, plaintiff has failed to establish a prima facie case of discrimination based on her age or her disability. Moreover, even if we assume for argument's sake that she surmounted this generally low threshold, she has failed to present sufficient evidence to satisfy the third stage of the McDonnell Douglas test to establish that the Board's denial of a raise based on her job performance was pretextual, and that the Board was motivated by discriminatory intent.

With respect to a prima facie case, plaintiff has established little more than that she is a member of protected groups she is over sixty and disabled and she received an adverse employment action in the form of frozen salary. She has provided no evidence of what similarly situated librarians have received. She also conceded that the Board denied raises to the assistant director, and administrative director. There is no evidence that they were also members of protected groups. Thus, she has failed to present sufficient circumstantial evidence to create a presumption of discrimination.

Turning to the third stage of the McDonnell Douglas burden-shifting analysis, plaintiff has failed to produce sufficient evidence to create a material factual dispute as to whether defendants' reasons for denying her a raise were pretextual, and more likely than not, motivated by discriminatory intent.

To defeat defendants' claim that plaintiff did not merit a raise, it was incumbent upon plaintiff to establish, through competent evidence, a genuine issue of fact that her job performance merited a raise. Her reference to initiatives that predated the years at issue is irrelevant. She offers only conclusory claims that measures of circulation, registration, and gifts reflect her success. She provides no details, let alone ties them to the time period at issue after April 2009. Based on the limited proofs, a reasonable factfinder could not rationally find the Board's decision to be "'unworthy of credence,' and hence infer 'that the employer did not act for [the asserted] non-discriminatory reasons.'" DeWees, supra, 380 N.J. Super. at 528 (alteration in original) (citations omitted) (quoting Fuentes, supra, 32 F. 3d at 765).

Plaintiff also offers insufficient evidence upon which to conclude she was denied raises because of discriminatory intent. In the context of this case, where the defense produced unrebutted evidence of the Board's dissatisfaction with plaintiff's job performance, Cervieri's alleged willingness to support a salary increase if she retired does not suffice to show discriminatory intent. Plaintiff contends her performance did not justify a salary freeze. Yet, she claimed one president denied her a raise not because of wrongful discrimination, but to retaliate for plaintiff's treatment when the president was a Library employee. She also claimed her salary was frozen because she was not a Fort Lee resident who supported the local Democratic party. Those reasons may be unfair or inappropriate, but neither explanation supports her claim of age-based or disability-based discrimination. Cf. Erickson v. Marsh & McLennan Co., 117 N.J. 539, 561 (1990) (stating that an at-will employee "can be fired for a false cause or no cause at all," which "may be unfair but it is not illegal").

To the extent not addressed, plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 Notably, defendants incorporated plaintiff's purported evidence of discrimination, embodied in deposition excerpts and interrogatory answers. Defendants argued such evidence failed to defeat their motion for summary judgment.

2 Plaintiff claimed that non-union department heads in the borough received raises while she did not, but the Library appears to be a free public library, N.J.S.A. 40:54-1 to -29 (governing creation and powers of free public libraries). It therefore operates as an independent municipal entity, see N.J.S.A. 40:54-11, which is separate from the governing body that determines department head salaries.

3 Under certain circumstances, a high-ranking plaintiff conceivably could establish a prima facie wage discrimination case by showing that a predecessor or successor with similar qualifications, performing the same job, was treated better. See 1 Lex K. Larson, Larson on Employment Discrimination 13.01[2] (2014). However, given plaintiff's lengthy tenure, that comparison is not feasible here.